2010.01.21 - Auth WP as Evidence on Law

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Authenticating Web Pages as EvidenceM. Anderson Berry and David Kiernan

Internet Law & Strategy

Print Share Email Reprints & Permissions Post a CommentPlaintiff sues your client, claiming that his injuries have significantly affected his

lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges

loss of consortium. On the eve of trial, you discover pictures and other details on

a social networking website about plaintiff's recent trip to the International Bowling

Museum & Hall of Fame, including a picture of plaintiff proudly holding a

fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days

earlier. As you approach the witness with printouts of the web pages, you are

stopped in your tracks: "Objection, lack of foundation."

It is now routine for litigators to conduct internet research to work up a case.

Indeed, for many litigators, one of the first things they do is see what is available about the opposing party,

searching Google, social networking sites like Twitter, MySpace and Facebook, and the party's personal

websites. During the life of any case, there will likely be valuable information obtained from the internet that will be

used at deposition or trial. Commonly, the proponent of online evidence will present a screen shot of the web

page, which was either downloaded as a .pdf or printed directly from the website. The process is like taking a

photograph of the image as it appears on the monitor. In general, this captures not only the look, but also the

download date and the URL. If proper steps are not taken to admit the evidence, the value of this information may

be lost.

AUTHENTICITY

As with all evidence, the proponent must be prepared to establish that the evidence is relevant, authentic, and not

subject to exclusion under the hearsay or best evidence rules. This article focuses on the second evidentiary

hurdle: authenticity. Although the burden of authenticating a document is usually quite low, doing so for a screen

shot of a website presents an additional challenge, as courts generally view such information with suspicion. As

one federal district judge noted: "Anyone can put anything on the Internet. ... [The Internet is] one large catalyst for

rumor, innuendo, and misinformation." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75

(S.D. Tex. 1999). It is "voodoo information." Id.

AUTHENTICATION UNDER FEDERAL RULE OF EVIDENCE 901

Federal Rule of Evidence 901(a) requires the proponent to show that the evidence is what it is purported to be.

Notably, the proponent need only make a prima facie showing from which the jury could reasonably find that the

document is authentic. Most courts require the proponent to come forward with "admissible evidence" to lay the

foundation, reasoning that the court's authenticity determination is governed by FRE 104(b). See, Lorraine v.

Markel Am. Ins. Co., 241 F.R.D. 534, 539-40 (D. Md. 2007).

FRE 901(b) provides a non-exhaustive list of illustrations of how a proponent may authenticate a document. The

two candidates for authenticating screen shots are 901(b)(1) (permitting authentication by "[t]estimony that amatter is what it is claimed to be") and 901(b)(4) (permitting authentication by "[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with circumstances").

Reflecting their suspicion of "voodoo information," the majority of courts appear to require the proponent to

authenticate a website under 901(b)(1). As one commentator has noted, testimony must answer the following

questions: "1) What was actually on the website? 2) Does the exhibit or testimony accurately reflect it? and 3) If

so, is it attributable to the owner of the site?" Lorraine, 241 F.R.D. at 555-56 (quoting Gregory P. Joseph, "Internet

and Email Evidence," reprinted in 5 Stephen A. Saltzburg et al., Fed. R. Evid. Man., Part 4 at 20 (9th ed. 2006).

That same commentator provides a list of factors that a court may consider, including the "length of time the data

was posted on the site ... whether it remains on the Web site for the court to verify; whether the data is of a type

ordinarily posted on that Web site or Web sites of similar entities ... whether the owner of the site has elsewhere

January 21, 2010

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source of the data as the Web site in question." Id.

Courts generally fall into three camps with respect to the scope of testimony that 901(b)(1) requires. The first camp

requires testimony showing that the information was posted by the indvidual to whom the information is attributed

in the form of a "statement or affidavit from ... [the website's] [W]eb master or someone else with personal

knowledge." In re Homestore, Inc. Sec. Litig., 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004); see also, Wady v.

Provident Life and Accident Ins. Co. of Am., 216 F. Supp. 2d 1060 (C.D. Cal. 2002) (sustaining objection to

affidavit because affiant lacked personal knowledge of who maintained the website or authored the documents).

This is akin to authenticating a letter, which requires showing that it was written by the individual to whom it is

attributed.

The second camp is much more permissive, finding sufficient testimony from the person who created the screen

shot that the image "accurately reflects the content of the Web site and the image of the page on the computer at

which the [screen shot] was made." Toytrackerz LLC v. Koehler, 2009 WL 2591329, at 6 (D.Kan. Aug. 21, 2009);

see also, Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc. , 2007 WL 4563875, at 5-6 (N.D. Ga. May 11, 2007)).

The standard applied by these courts is not much different from that applied to photographs. In kSolo, Inc. v.

Catona, for example, the court admitted a screen shot, noting that although the declarant "may not have [had]

knowledge as to how the Web site works on a technological level, his declaration establishes sufficient knowledge

to attest that the screen shots are an accurate representation of what he encountered upon visiting the Web site."

2008 WL 4906115, at 1, n.5 (C.D. Cal. Nov. 10, 2008); see also, Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d

Cir. 2007) (ignoring the "Web master" portion of Homestoreand citing that case only for the proposition: "To be

authenticated, some statement or affidavit from someone with knowledge is required").

Notably, courts in the second camp do not appear to require the proponent to authenticate the information as

authored or sponsored by the individual to whom it is attributed. Instead, the party need only show that the sc reen

shot reflects what was on the site. Presumably, the issue of authorship or sponsorship will be the subject of cross-

examination and further proof.

The third camp is somewhere in between, requiring different evidence depending on the circumstances. In United

States v. Jackson, for example, the 7th Circuit excluded screen shots because the proponent did not prove that

the website's owner actually posted the information. 208 F.3d 633, 637 (7th Cir. 2000). The court held that the

proponent must demonstrate that the information was actually put on the website by the site's sponsor. But the

Jacksoncourt went on to note that the type of evidence required to meet the prima facieburden depends on the

proponent's incentive and ability to falsify evidence. In that case, the proponent argued that a white supremacist

group had claimed responsibility on its website for her alleged actions. Siding with the government, the court

refused to admit screen shots of the supremacist group's website introduced by defendant, noting that the

defendant was a sophisticated computer user and had every incentive to try to place the blame on someone else.

This incentive required the defendant to link the information directly to the website's sponsor.

A litigant could try to authenticate a screen shot without testimony by relying on FRE 901(b)(4), arguing that the

look of the screen shot, the download dates and identifying web addresses are sufficient circumstantial evidence

of authenticity. See, e.g., Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1154 (C.D.Cal. 2002)

(admitting website posting due to circumstantial indicia of authenticity, including presence of download dates and

identifying web addresses). However, that information is not likely to pass muster. Even in Perfect 10, theproponent submitted a declaration stating that the sc reen shots were true and correct copies that he printed from

the internet.

AUTHENTICATION OF SCREEN SHOTS FROM ARCHIVE.ORG

Many litigators are familiar with the Internet Archive, also known as the "Wayback Machine." The Internet Archive

uses a process called "crawling" to visit websites and systematically duplicate and store the data on its own

servers, which allows users to retrieve copies of web pages as they existed at various times in the past. With the

amount of information posted on the web, it is an indispensable investigatory tool.

Most courts that have addressed the issue have admitted screen shots from the Wayback Machine, finding

sufficient "a statement or affidavit from an Internet Archive representative with personal knowledge of the contents

of the Internet Archive website." St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, 2006 WL 1320242, at

2 (M.D.Fla. May 12, 2006); Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 WL 2367740, at 5-6

(N.D.Ill. Oct. 15, 2004) (party submitted affidavit from the administrative director for the Internet Archive describing

in detail the process used to allow visitors to search archived web pages). Notably, California has recognized it as

an official library for purposes of federal funding.

At least one court has suggested, however, that it would not accept screen shots from the Internet Archive even if

authenticated by such an affidavit. Novak v. Tucows, Inc., 2007 WL 922306, at 5 (E.D.N.Y. March 26, 2007). The

court reasoned that the Internet Archive's employees play no role in ensuring that archived websites accurately

represent what had been posted on the original website. However, a recent district court case in the 2nd Circuit

has called Novak's dicta into question, noting that sc reen shots from the Internet Archive may be "authenticated by

a knowledgeable employee of the website." Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78

(N.D.N.Y. 2008).

The Internet Archive's website sets out the procedures for obtaining an affidavit and provides a useful sample.

See, www.archive.org/legal and www.archive.org/legal/affidavit.php.




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SELF-AUTHENTICATION UNDER FRE 902

A proponent may also try to f it the screen shots into the relatively narrow categories of FRE 902, which permits

authentication without extrinsic evidence. The likely candidates are 902(5) (Official Publications), 902(6)

(Newspapers and Periodicals), 902(11) (Certified Domestic Records of Regularly Conducted Activity), and 902(12)

(Certified Foreign Records of Regularly Conducted Activity). With respect to 902(11) and (12), the proponent will

have to obtain a declaration from a qualified person certifying that the information posted on the website meet the

requirements of a business record.

FRE 902(5) defines "Official Publications" as "[b]ooks, pamphlets, or other publications purporting to be issued by

public authority." Most courts have held, depending on the information, that screen shots of U.S. and State

government websites are self-authenticating as an official government publication under 902(5). Paralyzed

Veterans of Am. v. McPherson, 2008 WL 4183981, at 7 (N.D. Cal. 2008) (citing cases); Lorraine v. Markel Am.

Ins. Co., 241 F.R.D. at 551 ("Given the frequency with which official publications from government agencies are

relevant to litigation and the increasing tendency for such agencies to have their own Web sites, FRE 902(5)

provides a very useful method for authenticating these publications.").

No case has addressed whether screen shots from a foreign government's website are self-authenticating under

902(5). Given the text of the rule, a court is likely to find that such documents are covered. FRE 902(5) provides

that "publications purporting to be issued by public authority" are self-authenticating. The term "public authority" is

not defined in the rules. However, courts interpreting FRE 803(8) -- the hearsay exception for "[p]ublic records and

reports" -- have ruled that it covers "statements" by a foreign government. See, e.g., F.A.A. v. Landy, 705 F.2d

624, 633 (2d Cir. 1983) (admitting a telex sent by the German government through the U.S. State Department to

the Federal Aviation Administration). Presumably, courts would read "public" to have the same scope under 902

(5). Under certain circumstances, a party may also be able to rely upon 902(3), which provides that foreign public

documents are self-authenticating, even without certification. See, e.g., U.S. v. Torres-Reyes, 2002 WL 31019363,

at 1 (10th Cir. 2002) (affirming the authentication of a foreign public document without certification -- this case didnot involve information from a website).

JUDICIAL NOTICE OF WEBSITES OR FACTS CONTAINED THEREIN

It may be possible to avoid the burden of authentication by requesting the court to take judicial notice of

information found on a website. Indeed, "[i]t is not uncommon for courts to take judicial notice of factual information

found on the world wide Web." O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007); see

also, Hotel Employees & Restaurant Employees Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of

New York Dept. of Parks & Recreation, 311 F.3d 534, 549 (2d Cir. 2002).

Federal Rule of Evidence 201(b) provides: "A judicially noticed fact must be one not subject to reasonable dispute

in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. If the

information is relevant, it is "appropriate to take [judicial] notice of the fact that the Web site makes such

adesignation, [if] the authenticity of the site has not been questioned." Hotel Employees, 311 F.3d at 549; see

also, Francarl Realty Corp. v. Town of East Hampton, 628 F.Supp.2d 329, 332 (E.D.N.Y. 2009). Moreover, FRE

201(d) makes the rule mandatory when it applies.

In O'Toole, the district court denied plaintiff's request to take judicial notice of relevant facts listed on Northrop's

website. Plaintiff had supplied the court with the address for the web page, and the court located it online. Id. The

10th Circuit found that the district court had abused its discretion by not judicially noticing the facts found on

Northrop's website, finding that O'Toole"addressed all the factors relevant to the application of [FRE] 201(b)(2)."

Id. The court noted that Northrop had not raised any reasonable dispute that the information was unreliable. Id. at

1225; see also, Wang v. Pataki, 396 F. Supp.2d 446, 458 (S.D.N.Y. 2005) (taking judicial notice of information on

a non-party's website).

Similarly, in Paralyzed Veterans of America, plaintiffs supplied to the court the applicable web pages that

appeared on the California Secretary of State's website. The first web page included a letter approving a California

county's use of the vote-counting device at issue in the litigation. The second page listed a set of conditions on the

use of the device. The court took judicial notice of the information on both web pages on the grounds that

defendants did not reasonably question the website's accuracy and the information was capable of accurate and

ready determination online.

At least one circuit court has required more before taking judicial notice of information on a website. In Victaulic

Co. v. Tieman, the district court had established certain facts about plaintiffs by accessing defendants' website,

which was not disputed as inauthentic by defendants. 499 F.3d 227, 236 (3d Cir. 2007). The 3rd Circuit, however,

held that the opposing party is not required to dispute the authenticity of the website, noting that "we allow judicial

notice only from sources not reasonably subjectto dispute." Id. (citing FRE 201(b)) (emphasis added). The court

found that judicial notice was improper here because "[a]nyone may purchase an [I]nternet address, and so,

without proceeding to discovery or some other means of authentication, it is premature to assume that a [W]eb

page is owned by a company merely because its trade name appears in the [URL]." Id. Given the suspicion many

courts hold toward information posted on the internet, a party in the 3rd Circuit faces an uphill battle.

CONCLUSION




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Although many courts view internet evidence as "voodoo information," with the proper support, authentication

should be overcome; overcoming a hearsay objection may be the real challenge. To authenticate a screen shot,

the proponent of a screen shot should t ry to obtain testimony through affidavit, requests for admission, deposition

or live testimony from the websites' sponsor or web master. At a minimum, the proponent must obtain from the

individual who took the screen shot testimony stating that the image accurately reflects the content of the website

and the image of the page on the computer at which the screen shot was made. The best practice would be to

draft a declaration immediately after the individual obtains the screen shot. If the evidence is from the opposing

party's website, the litigant should try to authenticate at the party's deposition or through a request for admission.

And the parties are always free to stipulate to authentication of any documents, including sc reen shots. Finally,

requesting judicial notice should be considered, depending, of course, on the jurisdiction.

David C. Kiernanis a litigator in the Trial Practice Group of Jones Day in its San Francisco Office and is a

member of the firm's E-discovery Committee. M. Anderson Berryis also an attorney in the same office. The

views expressed are solely those of the authors and should not be attributed to the authors' firm or its clients.

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2010.01.21 - Auth WP as Evidence on Law